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Court of AppealPartially AllowedCriminal Appeal 98 of 2015· [2018] KECA 691 (KLR)

Peter Esokon Meja alias Uncle ‘P’ v Republic [2018] KECA 691 (KLR)

Court of Appeal of Kenya
22 March 2018
2,569 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a robbery conviction but threw out the mandatory death sentence, replacing it with 10 years imprisonment.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Eldoret against the conviction and sentence of the appellant, who had been convicted of robbery with violence by the Principal Magistrate's Court at Lodwar and sentenced to life imprisonment. The High Court at Kitale (Karanja & Kimondo, JJ.) upheld the conviction but, invoking the Court of Appeal's Mwaura decision that section 296(2) of the Penal Code carries a mandatory death sentence, set aside life imprisonment and substituted a death sentence. The Court of Appeal, coram Githinji, Okwengu and Mohammed, JJ.A., in a single judgment of the court, confined itself to matters of law. It rejected the complaints of violation of the right to interpretation under Article 50(2)(n), holding that the appellant's extensive cross-examination showed he understood the proceedings and that he was capitalizing on an inadvertent omission in the record; the 24-hour arraignment complaint also failed on the facts. The section 200 Criminal Procedure Code complaint failed because the record showed the provision was explained and the appellant elected to proceed. On identification and circumstantial evidence, the court upheld the concurrent findings: the attack occurred in broad daylight and the complainant's phone was recovered from the appellant shortly after the robbery, overwhelming the alibi. The court therefore dismissed the appeal against conviction. On sentence, following the Supreme Court's Muruatetu decision as applied in William Okungu Kittiny, it held the mandatory death sentence under section 296(2) unconstitutional and substituted a sentence of 10 years imprisonment to run from the date of conviction. The appeal was partially allowed.

Key legal issues

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01

Constitutionality of the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code

Holding

Following Muruatetu as applied in Kittiny, the mandatory death sentence under section 296(2) is unconstitutional; death is a discretionary maximum punishment.

Reasoning

The High Court had applied the Mwaura decision, which made the death sentence mandatory, but the Supreme Court in Muruatetu affirmed Mutiso and declared the mandatory death sentence under section 204 unconstitutional. Section 204 is similar to section 296(2), and the Muruatetu reasoning extends to robbery with violence, as this Court held in Kittiny. The court therefore interfered with the death sentence.

p. 3
02

Compliance with the right to interpretation and fair trial (Article 50(2)(n))

Holding

No violation: the record showed interpretation during plea and the appellant's extensive cross-examination demonstrated understanding; the 24-hour complaint also failed on the facts.

Reasoning

The record showed English/Kiswahili/Turkana interpretation during plea and at hearing; the complainant and Manleed Isaac testified in Somali, but the appellant and co-accused cross-examined them extensively, which the court treated as proof of understanding. The appellant never complained of interpretation in the first appellate court and was attempting to capitalize on an inadvertent omission in the record.

p. 2
03

Compliance with section 200 of the Criminal Procedure Code on transfer of the case between magistrates

Holding

The provision was complied with: the section was explained and the appellant elected that the case proceed from where it had reached.

Reasoning

Two magistrates heard the case; the second took over on 3rd September 2013. The record showed section 200 was explained to the appellant and co-accused, and the appellant elected to have the case proceed from where it had reached; proceedings were then typed and hearing continued. The complaint therefore had no basis.

p. 2
04

Sufficiency of identification and circumstantial evidence of recent possession

Holding

Conviction upheld: identification in broad daylight was positive and recovery of the stolen phone from the appellant shortly after the robbery sealed his fate; the alibi could not stand.

Reasoning

Both the complainant and the boda boda operator identified the appellant as one of the three attackers; the incident occurred in broad daylight, minimizing mistaken identification. The phone was recovered by PC Samuel Kanyi, witnessed by the complainant and Ahmed Sadia, and positively identified. Given the overwhelming evidence, the alibi defence failed.

p. 3

Legal principles established

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  • The mandatory death sentence under section 296(2) (and 297(2)) of the Penal Code is unconstitutional after Muruatetu; death under those provisions is a discretionary maximum punishment.
  • A second appeal is confined to matters of law and the Court will not interfere with concurrent findings of fact unless there was no evidence at all on which they were based.
  • Extensive cross-examination of witnesses by an accused is evidence of understanding of the proceedings capable of curing an omission in the record regarding interpretation.

Court orders

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  1. 1.Dismissal of the appellant's appeal against conviction
  2. 2.Allowance of the appellant's appeal against sentence
  3. 3.Setting aside of the death sentence imposed by the High Court
  4. 4.Substitution of a sentence of 10 years imprisonment to take effect from the date of conviction

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 297(2)
  • Penal Codesection 204
  • Criminal Procedure Codesection 200
  • Constitution of KenyaArticle 50(2)(n)
  • Constitution of KenyaArticle 25

Cases cited (5)

  • Boniface Kamande & 2 Others vs Republic
    [2010] eKLR
  • Joseph Njuguna Mwaura & Others vs Republic
    [2013] eKLR
  • Godfrey Ngotho Mutiso vs Republic
    [2010] eKLR
  • Francis Karioko Muruatetu & Another vs Republic
    [2017] eKLR, Petition No. 15 of 2015
  • William Okungu Kittiny vs Republic
    Civil Appeal No. 56 of 2013 (unreported)
On appeal from
High Court of Kenya at Kitale
HCCRA No. 15 of 2014
Jurisdiction invoked
Second appeal to the Court of Appeal on matters of law only under the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Esokon Meja alias Uncle ‘P’ v Republic [2018] KECA 691 (KLR)", Case Analysis (2018). Criminal Appeal 98 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/691/eng@2018-03-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.